A Malfunctioning White House:
In all the attention paid to Harriet Miers lack of qualifications to be on the Supreme Court, the process by which she became the nominee has generally been ignored. After all, it is only day two in this sad saga. Here is a long excerpt from Tom Smith's post on The Right Coast that deserves wide circulation, in addition to MSM follow up by journalists. (We bloggers, after all, can only do so much.)
The more I think about this nomination, the worse it seems. But then, I am so frequently wrong, perhaps that bodes well. Worst to me is that it is redolent of weakness. It is the sort of decision a President who feels weak would make. It is also completely conflicted. When Ms. Miers put her hat in the ring, who in the WH was supposed to say, "but, Mr. President, she's not qualified"? Anybody who torpedoed her would have to work with her in the future, which would not be fun. So the people closest to the process are immediately in a position of not being able to give candid advice — a reason not to pick close cronies in the first place. Relatedly, the WH counsel's office traditionally is the place judicial candidates are vetted. So this is like your marriage counselor telling you you should get divorced and marry her, or something. Total conflict of interest. Bush needs a lawyer or something to advise him on how to make decisions consistently with his duties of office. Oh that's right! His lawyer's the one getting nominated! Well, I'm sure her sense of law and propriety will dramatically improve once she is making unreviewable law for the whole country.

Also, it looks like a weak president captured by his staff. Maybe this is too cynical, but I fear, utterly lovely in every conceivable respect though she may be, Ms. Miers may have sensed that when W was at his most embattled was the perfect time to cash in her big chip with the guy. And with threats from the Dems on one side, and your staff using that to help themselves on the other, what are you supposed to do? And don't imagine there was a soul in the WH saying, uh, maybe we should pick someone who is, like, really qualified? I don't know if there is a species in which the babies eat the parents, some spiders maybe, but if so, they should be called creepycrawly Whitehousestaffiensis. This has that look to me. It also looks very much like a deal with the Senate Democrats, a pick off their list of acceptable candidates, which makes one wonder why Bush and Rove thought that was necessary, unless they think things are going really badly, which maybe they are. Miers and Rove probably get along famously. How very nice for them.

I have been a critic of the Yale-Harvard-Supreme Court Clerk- etc. etc. mystique before, and I do think being overly impressed by liberal establishment credentials plays into the hands of the dark side. But really. I can't help but think W's not being a lawyer makes him a bit clueless about what a Supreme Court Justice should be. It's a very demanding job, both intellectually and morally. You put someone not up to the job up there and bad things happen. Bad things happen to prose — read a Souter opinion (if you dare); bad things happen to philosophy (Kennedy) and bad things happen to law (O'Connor).
I do not expect any president to know enough about judicial philosophy to pick judges on his own. I expect him or her, however, to appoint advisers who do know about such matters and follow their advice. Either the President made this choice on the recommendation of his principal adviser (which is Harriet Miers), over her objection, or for some reason she abstained to counsel him on the merits of this particular pick in which case she could not perform her principal task which would have then fallen to her subordinates or to the President's political advisers.

In any case, there is no basis in fact to trust the President's judgment about the kind of justice she will be. None.

Update: Matthew Frank makes a similar observation this morning in NRO's Bench Memos.:

The trouble is, her own self-interest became inextricably bound up in the process of decision-making at that point. Not a good thing, and it was Bush's fault. So, to whom did he turn, if anyone, for an opinion on Miers's merits?

Joseph Henchman (mail):
Here here. I can't believe that anyone is endorsing this nominee.
10.5.2005 9:16am
chaoticgoodnik (www):
I'm not a lawyer, or a politician, or even conservative, but even I knew off the top of my head that oh, some evidence of legal thought, particularly on constitutional issues, was an important thing. Sheesh.
10.5.2005 10:10am
SimonD (www):
It seems that the candidate's overwhelming positives are a) she's a conservative and b) Bush knows her. Well, in regard to point a), conservatives are just as willing to engage in judicial activism as liberals, when it suits them. For all lthe blue murder screamed about Roper, it was screamed at almost the same time they were demanding the constitution be ripped up to save Terri Schaivo's life at all costs. Fiat justitia ruat coelum indeed.

And in regard to point b), I can't help but say "so?". We are supposed to trust Bush's judgement? On faith? Forget the broader question of should we - I don't even reach that question. My question is, why are we even being asked to?! Nobody had to ask whether Robert Bork was another Harry Blackmun - nobody had to take that on faith, they could read his record. This woman has no such record, and a career in a job which fosters precisely the opposite mindset required by a good judge.

The omens are not good.
10.5.2005 10:50am
uh clem (mail):
Bush needs a lawyer or something to advise him on how to make decisions consistently with his duties of office. Oh that's right! His lawyer's the one getting nominated!

Is anybody surprised by this? Remember how Dick Cheney became Veep?
10.5.2005 10:52am
I mentioned this in an earlier thread, but I think it bears repeating here. The NYTimes article about Miers has this to say about her:

"Harriet is what you would call a Southern lady. It is marvelous to watch her in meetings with huge egos, where she allows people to think good results are the product of their own ideas."

She has a talent for manipulating Texans with big egos. That certainly describes the president.
10.5.2005 10:58am
Jeremy (www):
Another problem is this:

She interviewed candidates for the job, and apparently, in the end, recommended herself. What does it say to other candidates, who interviewed with her, that they knew in the end there was a great chance the interviewer would end up beating them out for the job?

It's inappropriate all the way around, and conservatives should know better. Well, this conservative DOES know better, but a lot of us don't. Hopefully the kool-aid will soon dry up.
10.5.2005 11:12am
DC Lawyer (mail):
This is a very interesting question. It would be utter hubris in my opinion for Miers to recommend herself. I don't think she did. I think the President short-circuited the process and made a gut call either on his own conviction or at the urging of Laura Bush, who is reported to be a good friend of Miers.

There's much to criticize about this nomination -- but I would caution against the assumption that Miers recommended herself. Evidence?
10.5.2005 11:26am
Cold Warrior:

Relatedly, the WH counsel's office traditionally is the place judicial candidates are vetted.

Tom Smith is half right.

As a young law clerk at DOJ, I ran into some similar young law students who were much more politicized than me (I was the classic nonpartisan "good government" academic type). They worked at DOJ's Office of the Legal Counsel.

Their assignment all summer long? Dig through the dirt on potential court nominees. They hit the jackpot with Clarence Thomas. At the time, they (good little Republicans all; lots of sons and daughters of Republican big contributors) were all worked up about Thomas's wife's involvement in some kind of self-help organization called "LifeSpring" or some such thing. They were worried she'd be dubbed a cult follower.

Well, they never uncovered the true dirt, as we quickly discovered. Anyway, I was appalled by the use of federal government employees (we were paid at the paralegal rate) to do work that had only a partisan/political purpose. And remember, OLC had only the best, brightest, and/or best-connected clerks, provided they were Republicans.

Was this the best and highest use of this young legal talent? Combing through old newspapers for any trace of dirt on Clarence Thomas? Yet this is precisely John Roberts's background.

The ever-increasing politicization of the federal government IS a big issue to me. And Roberts is a symptom of it; the Miers nomination is, I hope, the beginning of public awareness of the problem of cronyism and the lack of ANY line between the political campaign forces and the higher calling of public service.
10.5.2005 11:37am
Stuart Buck (mail) (www):
Easy answer to the above concerns: The people who vetted Miers did so behind her back. See this article.
10.5.2005 11:52am
From that article:

Bush sat down with Miers in the Oval Office that same day for the first of four conversations in which she was the interviewee instead of the interviewer. Miers was stunned at first.

"We said, 'Well, Harriet, look at your résumé. Is that the résumé of someone you would recommend the president consider?' " recalled the senior official. "And she said, 'Yes.' "
10.5.2005 12:20pm
SimonD (www):
Just a minor point: Bush says Harriet Miers "knows what kind of judges Bush wants". It's a fair guess that Joe Biden "knows the kind of judges Bush wants" - is he in the running too?
10.5.2005 12:54pm
David M. Nieporent (www):
Cold Warrior:

Your fears may be reasonable, but I don't think they apply to the situation you describe. Nominating a judge is an official, constitutional duty of the presidency. As such, of course it's appropriate for the DoJ to vet candidates.
10.5.2005 4:47pm
Bill Dyer (mail) (www):
Prof. Barnett, you wrote: "I do not expect any president to know enough about judicial philosophy to pick judges on his own. I expect him or her, however, to appoint advisers who do know about such matters and follow their advice."

Can you possibly imagine how incredibly elistist and offensive this statement is?

You're asserting that no one but lawyers can pick judges. Okay, then, let's amend the Constitution to take the nomination power out of the hands of the president and put it in, what -- maybe a board of LAW PROFESSORS?

Here's a news flash for you: CLIENTS are sometimes quite good at evaluating lawyers. And you don't have to be a watchmaker to tell whether a watch keeps good time.

Seriously, good sir, you're not just off into the elistist deep end now, you've drowned in it if you actually believe this.
10.5.2005 10:27pm